The opinion of the court was delivered by: Smith, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
At defendant's trial, the People contended, and the jury found, that he had attempted to subject a physically helpless woman to sexual contact. The evidence fails to support the jury's finding on this issue, and we therefore vacate defendant's conviction for attempted sexual abuse.
The alleged victim, whom we will call Catherine, went with friends to dance at a bar defendant owned. She had been drinking before she arrived at the bar, continued after she got there, and became extremely drunk. A blood test taken shortly after the events at issue here showed a blood alcohol concentration of .267%. (A driver is considered intoxicated with a .08% concentration [Vehicle & Traffic Law § 1192 (2)].)
Defendant and Catherine were acquaintances, and they engaged in some mild displays of affection after she arrived at the bar; Catherine hugged him, and permitted him to put his arm around her shoulders. But the People presented evidence that, as Catherine showed more severe signs of intoxication, defendant became more aggressive. He made "rude comments" to her as she sat on a bar stool drinking, and when she tried to get up to find one of her friends he prevented her by holding her wrist. He tugged on her shirt, and tried to put his hands under it. He held her chin, and tried to turn it towards him. He touched her thighs around where her shorts ended, and kissed her once. Holding her by her wrist or waist, he led her to a nearby storage room, pulled her in and closed the door.
Catherine found herself in the storage room with defendant and another man. Defendant held her wrist; the other man pulled at (but did not remove) her shorts; one or both of them pulled at her shirt. Defendant tried to put his hands under her shirt, and both men tried to kiss her. They asked her to go upstairs with them. She refused to go upstairs, and she resisted their physical advances by sitting on the floor. At one point she tried to leave the room but was unable to open the door (though the door had no lock). When Catherine's cell phone rang, defendant prevented her from answering, and took the phone away. The encounter ended after one of Catherine's friends called her family, and her father arrived and led her out.
Catherine did not describe her own mental or physical condition except to say that "it was pretty blurry" from around the time defendant's aggressive conduct began. Two of her friends, who observed her as she sat on the bar stool, supplied more information. One said that she was "slouched over in the seat . . . . very kind of looking out of it," that "her head was bobbing back and forth" and that "she seemed very kind of lifeless." The other friend gave a similar description, adding that Catherine did not respond when someone called her name, that at one point she slipped off the stool, and that defendant helped her back up. Catherine's friends could not see her when she was in the storage room; Catherine's own testimony does not suggest that she was ever unconscious, or too weak to offer resistance, during that part of the encounter.
Defendant was indicted for attempted sexual abuse in the first degree, unlawful imprisonment in the second degree and forcible touching. The jury convicted him on the first two counts, and, in compliance with the trial judge's instructions, did not reach the third. The Appellate Division affirmed the conviction and sentence. A Judge of this Court granted leave to appeal, and we now modify the judgment to vacate the conviction for attempted sexual abuse.
Defendant was charged with, and convicted of, an attempt to violate Penal Law § 130.65 (2), which says:
"A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact . . .
"When the other person is incapable of consent by reason of being physically helpless . . . ."
"Sexual contact" and "physically helpless" are defined in section 130.00 of the Penal Law. "'Sexual contact' means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party" (Penal Law S 130.00 ). "'Physically helpless' means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act" (Penal Law § 130.00 ).
There is no evidence, and the People have never claimed, that defendant actually subjected Catherine to sexual contact. He was charged only with an attempt to commit sexual abuse, not with the completed crime. This raises a question: If a person is physically helpless, how can an attempt to subject her to sexual contact fall short of success? It could theoretically happen -- for ...